Date: 20120918
Docket: IMM-4123-11
Citation: 2012 FC 1090
Ottawa, Ontario, September 18, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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HARSHKUMAR
JAYESHBHAI PATEL
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
Mr. Harshkumar Jayeshbhai Patel applies for judicial review
of a Visa Officer’s June 10, 2011 decision refusing his application for
permanent residence as a member of the family class according to paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations).
The Applicant, a minor, was sponsored for permanent residence as a member of
the family class by his mother. The Applicant challenges the Officer’s decision
that insufficient humanitarian and compassionate (H&C) grounds exist in
order to overcome the Officer’s s. 117(9)(d) finding.
Background
[2]
The Applicant is a 17 year old citizen of India. His father, Mr. Jayeshkumar Patel, was sponsored to immigrate to Canada as part of a family
class sponsorship commenced in 1989. However, the Applicant’s father did not
become a permanent resident of Canada until 1997.
[3]
In the period of time between the application for permanent
residence in 1989 and obtaining permanent residence in 1997, the Applicant’s
father was involved in a relationship with the Applicant’s mother in India. The Applicant was born in India in 1994.
[4]
The Applicant’s father did not declare the Applicant as a
family member when he became a landed permanent resident. In 1998, the
Applicant’s father returned to India and underwent a civil marriage with the
Applicant’s mother. The Applicant’s father then sponsored the Applicant’s
mother who also did not disclose the fact that they had a child.
[5]
Once the Applicant’s father became a Canadian citizen, he
attempted to sponsor the Applicant for permanent residence. The application was
refused as the son was not declared as per s. 117(9)(d) of the Regulations.
An appeal was made to the Immigration Appeal Division but was dismissed. A
second sponsorship application was made with an accompanying H&C request.
This second application was refused on January 22, 2010.
[6]
The Applicant’s mother sponsored their son in this third
application for permanent residence. This application also included an H&C
request. The Applicant’s mother submitted that the Applicant has been residing
with his paternal grandparents in India who were aging and have said they can
no longer take care of the Applicant. The Applicant’s mother also submitted
that there were no immediate family members who could bear this responsibility
and that the Applicant’s parents longed to be re-united with the Applicant.
[7]
The latest application was refused on June 10, 2011. The
Officer found that the Applicant remained inadmissible as per s. 117(9)(d) and
that an exemption under s. 25(1) for H&C considerations was unwarranted.
Decision Under Review
[8]
The Officer’s decision is contained in the refusal letter
dated June 10, 2011, the Global Case Management System (GCMS) notes and a three
and a half page summary of reasons for the decision written by the Officer but
produced later. According to the Officer’s affidavit, these three and a half
pages were written after her review of the application and obtaining additional
information from the grandparents in India by telephone.
[9]
The Officer reviewed the Applicant’s parents’ immigration
history in Canada and noted neither parent declared the Applicant on their
permanent resident applications or at the port of entry. The Officer rejected
the various excuses offered by the Applicant’s parents for not earlier
disclosing the Applicant’s existence. The Officer found the Applicant excluded
as a member of the family class pursuant to s. 117(9)(d) of the Regulations
since he was not declared or examined when the father and the mother each
applied for permanent residence.
[10]
The Officer then considered the Applicant’s request for
H&C consideration.
[11]
The Officer noted the Applicant submits that the Applicant
lives with his paternal grandparents in Gujarat, India but they are aging. The
grandparents indicated that they can no longer take care of the Applicant and
there are no immediate family members who can assume this responsibility. The
Applicant’s parents long to be re-united with their son.
[12]
The Officer made telephone enquiries at the homes of the
Applicant’s paternal and maternal grandparents. She learned the Applicant
attends the Swaminarayan School and stays in the school hostel. The Applicant
returns to his paternal grandparents’ home during school holidays. The Officer
noted other family members live in the paternal grandparents’ home.
[13]
The Officer also found the Applicant’s parents can
communicate with the Applicant on the telephone and can visit him in India periodically.
[14]
The Officer decided the Applicant’s parents are away from
their son because they chose to leave him in India and go away to Canada. The Officer stated that the situation they find themselves now in is the creation
of the parents’ own actions and misrepresentations. The Officer also observed
that it is not unusual for children to live in hostels away from parents in
hostels because parents want their children educated in schools located
elsewhere.
[15]
Given the above, the Officer did not believe that an
H&C exemption under s. 25 was justified taking into account the best
interests of the child. The Officer refused the application.
Relevant Legislation
[16]
Immigration and Refugee Protection Act, SC 2001, c 27:
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25. (1) Subject to subsection (1.2), the Minister
must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible or does not meet the
requirements of this Act, and may, on request of a foreign national outside
Canada who applies for a permanent resident visa, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
[Emphasis added]
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25. (1) Sous réserve du paragraphe (1.2), le ministre
doit, sur demande d’un étranger se trouvant au Canada qui demande le statut
de résident permanent et qui soit est interdit de territoire, soit ne se
conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[17]
Immigration and Refugee Protection Regulations, SOR/2002-227:
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117(9) A foreign national shall not be considered a
member of the family class by virtue of their relationship to a sponsor if,
…
(d) subject to subsection (10), the sponsor previously
made an application for permanent residence and became a permanent resident
and, at the time of that application, the foreign national was a
non-accompanying family member of the sponsor and was not examined.
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117 (9) Ne sont pas considérées comme appartenant à la
catégorie du regroupement familial du fait de leur relation avec le répondant
les personnes suivantes :
…
d) sous réserve du paragraphe (10), dans le cas où le
répondant est devenu résident permanent à la suite d’une demande à cet effet,
l’étranger qui, à l’époque où cette demande a été faite, était un membre de
la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet
d’un contrôle.
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Issues
[18]
The issues arising in this case are whether the Officer:
1. relied on extrinsic evidence thus breaching the
duty of fairness owed to the Applicant;
2. failed to consider humanitarian and
compassionate considerations taking into account the best interests of a child
directly affected.
Standard of Review
[19]
The Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008 SCC 9 at paras 50 and 53 [Dunsmuir] that there are only two
standards of review: correctness for questions of law and reasonableness
involving questions of mixed fact and law and fact. The Supreme Court has also
held that where the standard of review has been previously determined, a
standard of review analysis need not be repeated. Dunsmuir at para 62.
[20]
The appropriate standard of review for a decision on
H&C grounds is reasonableness. Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ no 39 at paras 57-62 [Baker].
A heavy burden rests on the applicants to satisfy the Court that the decision
under section 25 requires the intervention of the Court. Mikhno v Canada (Minister of Citizenship and Immigration), 2010 FC 386, [2010] FCJ no 583 (QL)
(TD) at para 25 [Mikhno]. However, it is also clear that breaches of
procedural fairness should be reviewed on a standard of correctness. Dunsmuir
at paras 47-50.
Analysis
[21]
The Applicant submits the Officer failed to address her
mind to the principal reason for seeking an exemption on H&C grounds: the
Applicant’s current caregivers, his paternal grandparents, are aging; they have
indicated that they can no longer take care of the Applicant; and there are no
other immediate family members who are willing to assume this responsibility.
[22]
The Applicant also submits the Officer telephoned the homes
of the Applicant’s grandparents and collected information. The Applicant
submits the Officer made negative inferences from the information collected.
Thus it was incumbent upon the Officer to make her concerns known to the
Applicant and his mother, the sponsor, and give them the opportunity to
respond. The Applicant submits the failure to do so constitutes a reviewable
error.
[23]
The Respondent states that the parents failed twice to
disclose the existence of the Applicant on their applications for permanent
residence in Canada. The current proceeding deals with a failed request to have
the parents’ misrepresentations overlooked and to approve the Applicant’s
application on H&C grounds.
[24]
The Respondent submits the Officer considered all the
circumstances of the case and determined there were insufficient H&C
grounds to approve the request. The Respondent submitted the standard of review
is reasonableness and emphasized the discretionary nature of a s. 25(1) H&C
decision. The Respondent submits the application for judicial review should be
dismissed.
[25]
I find no issue arises with the Officer’s determination
that the Applicant is excluded from being considered a member of the family
class as per s. 117(9)(d). The record is quite clear that both parents failed
to declare the Applicant’s existence on either of their applications for
permanent residence. I also find no error in the Officer’s rejection of the
explanations for non-disclosure advanced by the Applicant and his sponsor.
[26]
The only issues in this case are whether the information
the Officer received via the telephone calls to the paternal and maternal
grandparents was extrinsic evidence that ought to have been put before the
Applicant, and whether the Officer rendered her negative H&C decision
without consideration of the Applicant’s H&C submission.
[27]
In Nadarajah v Canada (Minister of Citizenship &
Immigration ), 112 FTR 296 at para 7 [Nadarajah], Justice Rothstein,
as he then was, discussed what constitutes extrinsic evidence:
Generally, extrinsic evidence is
evidence of which the applicants are unaware because it comes from an outside
source. But the scope of extrinsic evidence for purposes of determinations
under subsection 114(2) of the Immigration Act or in PDRCC risk assessments is
not without limitation. In Dasent v. Canada (Minister of
Citizenship & Immigration), a January 18, 1996 decision of the Federal
Court of Appeal, Court File A-18-95, Strayer J. found that the evidence
given by a spouse in a separate spousal interview in a humanitarian and
companionate [sic] case under subsection 114(2) of the Immigration Act,
was not extrinsic evidence…
[emphasis added]
[28]
According to the Officer, she made calls and spoke to
‘family members’. She learned that the Applicant attended the Swaminarayan School and stayed in the school hostel. The Officer discovered that the Applicant
returned to his parental grandparents’ home during school holidays. The Officer
also discovered through the telephone calls that the Applicant’s paternal
uncle, his wife, two sons and a daughter also live in the paternal
grandparents’ home.
[29]
The information obtained by the Officer from the telephone
call to the grandparents would not be extrinsic evidence since it would be
information which is readily accessible to the Applicant and his mother. Nadarajah
at para 7. However, a difficulty arises.
[30]
First, the Officer does not identify the family members who
are the source of information obtained. She spoke to someone at the maternal
grandparents’ home, a different household. Other individuals resided at the
home of the paternal grandparents. In short, we do not know if the Officer
spoke to the paternal grandparents. It is they who are said not to be able to
continue to care for the Applicant. At best one can only infer the Officer
drew a negative inference from the information collected from individuals described
as family members.
[31]
Second, the Officer does not address the submission the
paternal grandparents could not provide care for Applicant and no other
immediate family members were willing to assume that responsibility.
[32]
The Officer states in her affidavit:
At paragraph 8 of her affidavit,
Mrs. Patel asserts that I made no reference to the fact that the son’s parental
grandparents are too old to continue to look after him in India. I considered this factor but noted that the son, who was left behind by his father and mother
when he was 3 and 4 1/2 years old respectively, was 17 at the time of the
decision. During school years, he stays in the school hostel and lives with
his paternal grandparents during school vacations. It is not unusual these days
for children to live away from parents in hostels because they want their
children educated in schools located away from the parents’ home. Many parents
send their children to developed countries for higher education. In any event,
the reason the parents are away from their son is because they choose to leave
him in India and go away to Canada. The situation they find themselves now in
is the creation of their own actions/misrepresentations.
[Emphasis added]
[33]
This statement cannot be accepted since the Officer is
impermissibly bolstering the record of decision. That record does not disclose
any analysis of the submission the grandparents were too old to look after the
Applicant and no other immediate family members were in position to assume that
responsibility.
[34]
In my view, the Officer failed to address her mind to the
principal reason for the H&C application on behalf of the minor Applicant.
The Officer focuses on the actions of the Applicant’s parents in leaving the
Applicant behind in India. The Officer’s summary never addresses the
submission that the paternal grandparents who have been the Applicant’s
caregivers are no longer willing to do so.
[35]
In Hurtado v Canada (Minister of Citizenship and
Immigration), 2007 FC 552, Justice Kelen stated:
a. The
Program Manager's failure to address the H&C factors raised in the
applicants' application yields a decision that cannot withstand judicial
review. The failure to consider relevant factors and evidence is a fatal one.
As Justice Mactavish held in Adu v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 693, 2005 FC 565:
In my view, these 'reasons' are
not really reasons at all, essentially consisting of a review of the facts and
a statement of a conclusion, without any analysis to back it up.
That is, the officer simply reviewed the positive factors militating in favour
of granting the application, concluding that, in her view, these factors were
not sufficient to justify the granting of an exemption, without any explanation
as to why that is. That is not sufficient, as it leaves the applicants in
the unenviable position of not knowing why their application was rejected.
[Emphasis
added]
In this case, the Program Manager
omitted even a perfunctory weighing of the H&C factors. While the
applicant's conduct was a negative and important factor relevant to the
weighing, his conduct does not obviate the need to consider the H&C
evidence. Indeed, if the applicant's misrepresentation were the only factor to
be considered, there would be no room for discretion left to the Minister under
section 25 of the Act. In the result, this application for judicial review is
allowed. The decision of the Program Manager is set aside and returned for
reconsideration by a different Program Manager.
[36]
It was open for the Officer to consider the submission and
come to a decision one way or the other. It is not open to the Officer to
recite and thereafter disregard the submission entirely. For the Officer merely
to repeat the Applicant’s submission without analysis is to fail to consider
whether an exception to the IRPA criteria is justified by humanitarian and
compassionate considerations taking into account the best interests of a child
directly affected.
[37]
I find the Officer failed to address a central basis for
which the H&C application was made.
Conclusion
[38]
The application for judicial review succeeds.
[39]
Neither party proposed a question of general importance for
certification.
ORDER
THIS COURT ORDERS that
1.
The application for judicial review is granted.
2.
The matter is remitted for re-determination by a different
visa officer.
3.
No question of general importance is certified.
“Leonard
S. Mandamin”
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